Consti Fd (2).docx

FINAL DRAFT SUBJЕCT : Law of Constitution TOPIC : " A STUDY OF ARTICLE 19 1(A) "

Submittеd To : Mahender Singh Paswan Asstt. Prof. (Law) Dr. RMLNLU, Lucknow

Submitted By : Akshayvat Kislay Roll No. : 10 Section- A 3rd Sеmеstеr, 2nd Yеar B.A. LL.B. (Hons.) Dr. RMLNLU, Lucknow

Table of Contents

1. Introduction

2. Citizenship

3. Reasonable restrictions

4. Freedom of Speech and Expression

 Burden of proving reasonableness  Press and pre-censorship 5. Dimensions of free speech under Article 19(1)(a)

 Sovereignty and integrity of India  Security of the State  Friendly relation with foreign state  Public Order  Contempt of Court 6. Practical constraints and curtailments

 Sedition 7. Conclusion

8. Bibliography

Introduction

Article 19(1) of the constitution guarantees six fundamental rights to the citizens of India which are exercisable by them throughout and in all parts of the territory of India. The rights enumerated in Article 19(1) are those great and basic rights which are recognized as the natural rights inherent in the status of a citizen. But none of these rights is absolute and uncontrolled, for each is liable to be curtailed by laws made or to be made by the state to the extent mentioned in Article 19. Clauses (2) to (6) of Article 19 recognizes the power of the state to make laws imposing reasonable restrictions for reasons set out in them.

Article 19(1)(a) of the Indian constitution guarantees right to freedom of speech and expression to the citizens of India. Article 19(2) states that the state has the authority to make a law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The Constitution (1st amendment) Act, 1951 inserted the word “reasonable” before the word “restrictions” in clause (2) also. Hence a law restricting the exercise of any of the rights guaranteed by clause (1) of Article 19 to be constitutionally valid must satisfy two conditions: 1. The restriction must be for the particular purpose mentioned in the clause permitting the imposition of the restriction on that particular right, and 2. The restriction must be reasonable.

The requirement that a restriction should be reasonable is of great constitutional significance, for it acts as a limitation on the power of the legislature, and therefore, widens the scope of judicial review of laws restraining the exercise of freedoms guaranteed by Article 19.

Though Article 19(1) of the Indian constitution guarantees six fundamental rights to the citizens of this country, but the scope of our discussion will be limited only to Article 19(1)(a) which mentions the right to freedom of speech and expression.

Citizenship

Rights in Article 19(1)(a) are available only to citizens. Determination of citizenship is therefore, a condition precedent for the availability of rights in this article. A foreigner has no rights under this article because he is not a citizen of India. Juristic persons such as companies are not citizens within the meaning of Article 19. “Citizens” under this article mean only natural persons who have the status of citizenship under the law. Registered companies and societies are, therefore, not treated as citizens for the purpose of this article.

Reasonable Restrictions The Constitution does not define the expression “reasonable restrictions”. Nor can an abstract standard or general pattern of reasonableness be laid down for all cases and situations. The test may vary from right to right restricted by the impugned law. Subject to the conditions that no absolute definition of the expression is possible, we may here summarize some of the principles which the Supreme Court has affirmed in ascertaining the reasonableness of restrictions on the rights secured under this article.

1. Reasonableness demands proportionality - The phrase “reasonable restrictions” signifies that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature. Legislation which arbitrarily or excessively invades this right cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(a) and the social control permitted by clause (2) of Article 19, it must be held to be wanting in reasonableness.

2. Reasonableness:

Both

substantive

and

procedural

–

In

determining

the

reasonableness of a statute, the court would see both: the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Not only substantive but procedural provisions of a statute also enter into the verdict of its reasonableness. 3. Reasonableness an objective concept – The reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations. It is the need of the objectivity that promoted the Supreme Court judges to warn the judges not to bring in their own predilections in ascertaining the reasonableness of restrictions. Reasonableness of restriction has to be viewed not only from the point of view of the citizen but also from the point of view of problem before the legislature and the object sought to be achieved.

4. Reasonableness of restriction and not of law – The court is called upon to ascertain the reasonableness of the restriction and not of the law which permits the restriction. A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.

5. Reasonableness includes prohibition – The word “restriction” also includes cases of total prohibition and the state can establish that a law, though purporting to deprive a person of his fundamental right, under certain circumstances amounts to a reasonable restriction only.

6. Reasonableness and US “due process” – Though the test of reasonableness in clause (2) of Article 19 might coincide with that of “due process” under the US constitution, it must not be assumed that they are Identical. As the constitution framers deliberately avoided in this context the use of the expression

“due process”,

caution

must

be exercised

before

the literal

application of the US decisions. 7. Reasonableness and directive principles of state policy – Imposition of a restriction for the implementation of the directive principles of state policy is a point in favor of the reasonableness of the restriction.

Article 19(1)(a) : Freedom of Speech and Expression Article 19(1)(a) secures to every citizen the right of freedom of speech and expression. Freedom of speech and expression has a well recognized connotation which means the liberty to express one’s views, opinions and beliefs. It does not mean the right to say whatever, wherever and whenever one likes. The difference between clause (a) and other clauses of Article 19(1) is notable in this regard. While other clauses grant the right to do something, clause (a) grants the right to freedom to do something. The right secured under Article 19(1)(a) is the bulwark of a healthy, progressive and democratic society. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self rule. The freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. 

Burden of proving reasonableness

Once the invasion of a right under Article 19(1)(a) is ex facie proved, the state must prove that such invasion is justified under the relevant clause (2) of Article 19. The onus is upon the state of proving to the satisfaction of the court that the restriction is reasonable. It is surely not for the petitioner to prove negatively that the legislation was not reasonable. The harsher the restriction the heavier the onus to prove the reasonableness. 

Press and Pre-censorship

Unlike the US constitution, Article 19(1)(a) does not expressly mention the liberty of the press, i.e. the freedom to print and to publish what one pleases without previous permission. But it is settled law that the right to freedom of speech and expression in Article 19(1)(a) includes the liberty of the press. The freedom of press is not confined to newspapers and periodicals, but includes also pamphlets, leaflets, circulars, and every sort of publication which affords a vehicle of information and opinion. The liberty of the press implicit in the freedom of speech stands on no higher pedestal than the freedom of speech and expression of a citizen and no privilege is

attached to the press as such distinct from the ordinary citizen. Thus the press is also subject to the general law of the land and is liable to taxation.

Dimensions of free speech under Article 19(1)(a) The freedom of speech and expression does not confer an absolute right to speak or publish, without responsibility, whatever one may choose or an unrestricted license that gives immunity for every possible use of language and does not prevent punishments for those who abuse this freedom. Clause (2) of the Article 19 specifies the grounds on which the freedom of speech and expression may be restricted. Article 19(2) enables the state to impose reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The aforesaid reasonable restrictions can be imposed only by a duly enacted law and not by executive action. The reasonable restrictions mentioned above have been described in detail as the following: 

Sovereignty and integrity of India

This ground has been added by the Constitution Act, 1963. The present amendment is made to guard against the freedom of speech and expression being used to assail the territorial integrity and sovereignty of the union. Thus, it will be legitimate for the parliament under this clause to restrict the right of free speech if it preaches secession of any part of the territory of India from the union. It may be noted here that the restriction is with to the territorial integrity of India and not about the preservation of the territorial integrity of the constitution states. 

Security of the state

The security of the state may well be endangered by crimes of violence intended to overthrow the government , waging of war and rebellion against the government, external aggression of war etc. All utterances intended to have the above effects may properly be restrained in the interests of the security of the state. Serious and aggravated forms of public disorder are within the expression “security of the state”. Every public disorder can’t be regarded as threatening the security of the state. In Romesh Thappar 1

AIR 1950 SC 124

1

, The Supreme Court definitely point out that the expression

doesn’t refer to ordinary breaches of public order which don’t involve

any danger to

the state itself. Incitement to commit violent crimes like Murder would

endanger the security of the

state. Thus in State of Bihar V. Shailabala Devi2 the law which made penal words or visible representation which incited to or encouraged, tended to incite or encourage any offence of Murder or any cognizable offence involving Violence held by Supreme court to fall within Art.19(2). 

Friendly Relations with Foreign State

This ground was added by the Constitution(1st Amendment Act)1951. The State can impose reasonable restriction on the freedom of speech in the intrest of friendly relations with the foreign state. The justification is obvious, unrestrained malicious propaganda against a foreign friendly state may jeopardize the maintenance of good relations b/w India and that state.

Relations with other state are responsible for acts Commited by persons within their jurisdiction. In accordance with this principle, most modern systems of law made provisions for the punishment of liable against the heads of foreign States. The English Common law punishes such liable on the ground that they imperil the peaceful relations of Her Majesty with foreign states. Accordingly, a law which makes it an offence to punish any liable tending to degrade or expose to hatred or contempt any foreign prince, ambassador, or other foreign dignitaries, will fall within this expression and will be held valid, provided that restrictions are reasonable. 

Public order

This ground was added by the Constitution (First Amendment) Act, 1951 in order to

meet the situation arising from the Supreme Court's decision in Romesh Thapar3, This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established."

2 3

AIR 1952 SC 329 AIR 1950 SC 124

Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of acausing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its external aspect 'public safety' means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order. In Kishori Mohan v. State of West Bengal4 the Supreme Court explained the differences between three concepts: law and order, public order, security of State. Anything that disturbs public peace or public tranquillity disturbs public order. But mere criticism of the government does not necessarily disturb public order. Om Prakash v. Emperor5. A law punishing the utterances deliberately tending to hurt the

4 5

AIR 1972 SC 1749 AIR 1948 Nag 199

religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order. It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya6 the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity. Interestingly – and unusually – the Court began with providing a philosophical justification for the public order exception. Public order, it held, was essential in creating and maintaining an environment in which fundamental rights in general – and the freedom of speech in particular – could be effectively enjoyed (paragraph 9). This lends support to our argument against any statistical test, outlined in the first paragraph of this post; an environment in which public order disruptions are used as a tool to restrict free speech is clearly anything but conducive to the enjoyment of the right. It also provides us with a principled yardstick to judge governmental interference stated to be on the grounds of public order: the ultimate objective must be to secure and maintain fundamental rights by securing and maintaining an environment in which they are neither stifled nor suppressed. 

Decency and Morality

The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent.

The standard of morality

shifted from time to time and place to place. The word 'obscenity' is identical with the word 'indecency' of the Indian Constitution. In an English case of R. v. Hicklin,7. the test was laid down according to which it is seen 'whether the tendency of the matter charged as obscene tend to deprave and 6 7

AIR 1960 SC 633 LR 3 QB 360 (1868)

corrupt the minds which are open to such immoral influences'. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra8 . In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book Lady Chatterley's Lover. The standard of morality varies from time to time and from place to place. 

Contempt of court

The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy9the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida 10 in which the United States Supreme Court observed: “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise”. In E.M.S. Namboodripad v. T.N. Nambiar11 the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah12, contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.

8

AIR 1965 SC 881 (2002) 3 SCC 343 10 (328 US 331 (1946)) 11 (1970) 2 SCC 325 12 AIR 1984 SC 615 9



Sovereignty and integrity of India

This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.

Practical constraints and curtailments

Freedom of speech and expression which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, though freedom activists, as well as most scholars and industrialised jurisdictions throughout the world recognise that freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality. According to the estimates of Reporters Without Borders, India ranks 120th worldwide in press freedom index (press freedom index for India is 39.33 for 2007). The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence". Laws such as the Official Secrets Act and Prevention of Terrorism Act have been used to limit press freedom. Under POTA, person could be detained for up to six months before the police were required to bring charges on allegations for terrorism-related offences. POTA was repealed in 2004, but was replaced by amendments to UAPA. The Official Secrets Act 1923 remains in effect. For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..."

On 26

June 1975, the day after the so-called emergency was declared in violation of the natural rights of Indian citizens, the Mumbai edition of The Times of India in its

obituary column carried an entry that read "D.E.M O'Cracy beloved husband of T.Ruth, father of L.I.Bertie, brother of Faith, Hope and Justica expired on 26 June"13.With the liberalisation starting in the 1990s, private control of media has increased, leading to increasing independence and greater scrutiny of government. Organisations like Tehelka and NDTV have been particularly influential, e.g. in bringing about the resignation of powerful Haryana minister Venod Sharma. In addition, laws like Prasar Bharati act passed in recent years contribute significantly to reducing the control of the press by the government.

 Sedition According to the English Law, sedition embraces all the practices whether by word or writing which are calculated to disturb the tranquillity of the State and lead an ignorant person to subvert the Government 14 . , (1868)) Basic criticism of the government is not seen as sedition unless the Government believes that it was calculated to undermine the respect for the government in such a way so as to make people cease to obey it15.( ) Section 124A of the Indian Penal Code defines the offence of sedition as follows: “Sedition. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”.16 (ipc ) But Explanation 3 says "Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section".In Kedar Nath v. State of Bihar17 (), the court upheld the constitutional validity of the Section 124A of I.P.C and also upheld the view taken in Niharendu’s case.

Austin, Granville , “Working a democratic constitution: the Indian experience”, Oxford University Press. p. 295. 14 R v Sullivan [ 1984] AC 156 15 Niharendra v. Emperor, AIR 1942 FC 22 16 Sec. 124A of Indian Penal Code 17 AIR 1962 SC 955 13

Conclusion From this article it can be easily concluded that right to freedom of speech and expression is one of the most important fundamental right. It includes circulating one's views by words or in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. Thus this fundamental right has a vast scope. From the above case law analysis it is evident that the Court has always placed a broad interpretation on the value and content of Article 19(1)(a), making it subjective only to the restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or suffocate this freedom have always been firmly repelled, more so when public authorities have betrayed autocratic tendencies. It can also be comprehended that public order holds a lot of significance as a ground of restriction on this fundamental right. But there should be reasonable and proper nexus or relationship between the restriction and achievement of public order. The words 'in the interest of public order' include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders , all communal matters all the matters and news and views about Pakistan, including photographs, and cartoons”, on the ground that it was a restriction on the liberty of the press. Similarly, prohibiting newspaper from publishing its own views or views of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression. In India, the press has not been able to exercise its freedom to express the popular views. In Sakal Papers Ltd. v. Union of India,] the Daily Newspapers (Price and

Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v. Union of India, the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the plea of the Government that it would help small newspapers to grow.

Bibliography

1. J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency, Allahabad.

2. Singh, M. P., Constitution of India, 10th ed. (2001), Eastern Book Co., Lko.

3. Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives, (2006),

4. Rajak, Brajesh, Pornography Law; XXX Must not be Tolerated, (2011) Universal

Law Publishing Co. Pvt. Ltd. New Delhi.